Traffic Jam - Recommendations For Civil Penalties To Curb The Rece

Michigan Journal of Gender & Law
Volume 6 Issue 1
1999
Traffic Jam: Recommendations for Civil Penalties to Curb the

Recent Trafficking of Women from Post-Cold War Russia
Christopher M. Pilkerton
Columbus School of Law at the Catholic University of America
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Recommended Citation
Christopher M. Pilkerton, Traffic Jam: Recommendations for Civil Penalties to Curb the Recent Trafficking
of Women from Post-Cold War Russia, 6 MICH. J. GENDER & L. 221 (1999).
Available at: https://repository.law.umich.edu/mjgl/vol6/iss1/6
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TRAFFIC JAM: RECOMMENDATIONS FOR CIVIL
AND CRIMINAL PENALTIES TO CURB THE RECENT
TRAFFICKING OF WOMEN FROM
POST-COLD WAR RUSSIA
Christopher(M. Pilkerton*
INTRODUCTION • 222
1. BACKGROUND • 223
A. The Mafia • 223
B. The Russian Mafia • 225
1. The History of Russian Organized Crime • 225
2. Role of the Russian Mafia in Government
Corruption • 226
C. Involvement of the Russian Mafia in ForcedProstitution 227
II. CURRENT LAW 230
A. InternationalResponses to Trafficking 230
1. Means of Extradition • 235
2. The International Criminal Court • 240
3. International Justice Commission • 242
B. Inadequacy of CurrentEnforcement . 244
III. LEGAL RECOMMENDATIONS UNDER EXISTING U.S. LAW • 245
A. Recommendations #1 and #2: Criminal& Civil
RICO Application • 246
B. Recommendation #3: CriminalActivity Through
Interstate Commerce • 251
C. Recommendation #4: CriminalActivity Through
ImmigrationLaw • 252
D. Recommendation #5: Organized Crime Activity As A
Violation of the Foreign CorruptPracticesAct • 254
E. Recommendation #6- Possible Tort Claims of
Trafficked Individuals • 257
J.D. Candidate, Columbus School of Law at the Catholic University of America,

1999; BA., Fairfield University, 1995. Mr. Pilkerton is a former intern for the
Global Survival Network, a Washington, D.C.-based nongovernmental organization
chiefly responsible for bringing forth information on the trafficking of women from
Eastern Europe. Mr. Pilkerton wishes to thank his family, Gillian Caldwell, Steven
Galster, Professor Lisa Lerman, Professor George P. Smith and the Charles and Lou-
ise O'Brien Fellowship Selection Committee for the opportunity to appreciate the
depth of this global problem.
MICHIGAN JOURNAL OF GENDER 6&
LAW [Vol. 6:221
1. Claims Under the Alien Tort Claims Act 257

2. Intentional Tort Claims Under U.S. Law 258
CONCLUSION • 258
"If those who traffic in drugs should be punished severely-and

they should-so should those who traffic in human beings."1
-Madeline Albright, Secretary of State of the United States
INTRODUCTION
Recent investigations into Russian organized crime syndicates

have peeled back their cloak of typical criminal activity, to discover
that their illegal enterprises have expanded beyond trafficking in
weapons and drugs to trafficking in human lives. 2 Every year, thou-
sands of women are trafficked from their homes in Russia to work as
prostitutes in Europe, Asia, the Middle East, and North America.3
This process is facilitated by the corruption of the Russian govern-
ment that enables unlawful activity to occur under the guise of
legitimate operations.4 The Russian mafia is a relatively new player in
the global market of criminal opportunity, and has established a prof-
itable business trafficking in human lives. 5
Numerous treaties have been created to stop this trafficking and
to protect these women's human rights.6 These treaties contain spe-
cific goals regarding how countries should discourage the trafficking
of individuals, work to rehabilitate the victims, and offer general as-
1. Victoria Pope, Trafficking in Women, U.S. NEws AND WORLD REPORT, April 7,
1997, at 42.
2. See Louise Shelley, Post-Soviet Organized Crime and the Rule ofLaw, 28 J. MARSHALL
L. REv. 827, 827 (1995) (discussing the influence of post-Soviet crime on Russian
society).
3. See generally, GLOBAL SURVIVAL NErwoR, CRIME & SERVITUDE: AN Exposi OF THE
TRAFFIC IN WOMEN FOR PROSTITUTION FROM THE NEWLY INDEPENDENT STATES, 1,
5-8 (Fall 1997) [hereinafter GSN].
4. See Scott P. Boylan, Organized Crime and Corruptionin Russia: Implicationsfr U.S.
InternationalLaw, 19 FoRDHAm INT'L L.J. 1999, 2000 (1996), where the author re-
fers to the relationship between the Russian government and organized crime as an
"illicit partnership." See also GSN, supranote 3, at 41-45.
5. GSN, supra note 3, at 33.
6. See Susan Jeanne Toepfer & Bryan Stuart Wells, The Worldwide Market For Sex: A
Review of International and Regional Legal Prohibitions Regarding Trafficking in
Women, 2 MICH. J. GENDER &L. 83, 83 (1994).
19991 TRAFFIC JAM
sistance to them.7 Enforcement procedures, however, have been in-

adequate. There has recently been serious discussion about the
establishment of an International Criminal Court (ICC) to address
these transnational issues. Although it is not clear whether trafficking
will be considered a prosecutable offense in the ICC, the theory be-
hind the ICC is that countries would have the opportunity to request
that certain criminals be tried before the ICC for crimes committed
anywhere in the world. Thus, a country would be allowed to enforce
an internationally recognized law upon an individual even if it could
8
not prosecute that individual in its own courts.
This Article will examine the recent criminal trend of trafficking
women from post-Cold War Russia into the United States. First, it
will examine the Russian mafia and its development. It will also dis-
cuss the system of economic corruption that currently exists in Russia,
which facilitates government involvement with this criminal activity.
It will further investigate the issues surrounding trafficked women and
the international anti-trafficking conventions that have been created
by the United Nations. Next, it will go into a deeper discussion of the
current status of relevant international law and the issues involving the
International Criminal Court. Finally, this Article will propose six
civil and criminal recommendations that can be utilized through the
current application of United States law with an emphasis on the need
for international enforcement of the laws that affect this problem.
This article is restricted to the trafficking of women from Russia; thus,
it discusses one example of a worldwide problem. Many of this arti-
cle's recommendations, however, may also apply to the trafficking of
women from other countries.
I. BACKGROUND
A. The Mafia
The idea of the mafia is not a new one. In fact, academics have
been debating its existence as a nationwide crime syndicate for over a
7. See Toepfer & Wells, supranote 6, at 90.

8. See Phyllis Hwang, Defining Crimes Against Humanity in the Rome Statute of the In-
ternational Criminal Court, 22 FoRHuAtm INAr'L LJ. 457, 457 (1998) (citing the
International Criminal Court as having "jurisdiction over genocide, war crimes, and
crimes against humanity when national courts are unable or unwilling to prosecute
such crimes").
MICHIGAN JOURNAL OF GENDER & LAW [Vol. 6:221
half century.! When United States Senator Estes Kefauver's committee

opened its hearings on organized crime in 1950, they were surprised
to discover that, in traditional Sicilian, the word "mafiosi" did not
refer to a person or persons.1l Rather, it embodied a moral code that
stood for integrity and excellence, exemplified in a patron-client rela-
tionship that included both the legitimate and criminal segments of
Sicilian society." In fact, the mafia that is glamorized in the contem-
porary media rarely demonstrates these values, but rather focuses on
the manipulation of economic opportunity through acts of violence.' 2
Accordingly, academics argue that the name "mafia" is a misnomer
because it does not refer to a secret organization, but to a method that
creates personal wealth and reputation by assigning certain functions
to a sub-cultural system. 3
This Sicilian blueprint has been manipulated and transformed
into the horrible reality of what, today, may be generically referred to
as "organized crime." 4 Organized criminal groups transcend ethnicity
and are more than a criminal cartel. 5 They are para-governments
within society whose activities include the regulation of prostitution,
gambling, and narcotics trafficking.' 6 Their lucrative activity preys on
a constituency of "urban poor'and lower middle classes,",
17
and is often
facilitated by corrupt alliances with public agencies.
As the livelihood of any organized crime syndicate is financial
profit, the dawn of the technological age demands activities beyond
national borders. Not only does this create opportunities in the mar-
ketplace of international business, it also causes various cultures to fall
prey to the activities of criminal organizations that have proven suc-
cessful in other lands. Therefore, the most critical areas to examine are
the dramatically changing countries in Eastern Europe, which have
9. See G. Robert Blakey, FederalCriminalLaw: The Need, Notfor Revised Constitutional

Theory or New CongressionalStatutes, But the Exercise ofResponsibleProsecutiveDiscre-
tion, 46 HASTINGS L.J. 1175, 1193 (1995).
10. See Blakey, supra note 9, at 1193 n.43.
11. See Blakey, supra note 9, at 1193 n.43.
12. See JOSEPH L. ALBINI, THE AMEUCAN MAFIA: GENESIS OF A LEGEND 135 (1971);
Charles Tilly, Forewordto ANTON BLOK, THE MAFIA OF A SICILIAN VILLAGE, 1860-
1960 at xiv (1973).
13. See HENNER HEss, MAIA AND MAFiosi: THE STRUCTURE OF POWER 127 (Ewald
Osers Trans., Lexington Books 1973).
14. HowARD ABADINSKY, ORGANIZED CIME 8-23 (3d ed. 1990).
15. See Blakey, supra note 9, at 1197.
16. See Blakey, supra note 9, at 1197.
17. Blakey, supranote 9, at 1197, 1198.
1999] TRAFFIC JAM
recently seen the fall of the Soviet Empire and the creation of the
European Economic Community.
B. The Russian Mafia
1. The History of Russian Organized Crime
Organized crime has existed in Russia since the days of the Bol-
shevik Revolution.' In fact, what became known as the "secret police"
of the Bolshevik movement was initially a concentrated recruitment of
career criminals. 9 These criminals became loyal to a government-
sponsored movement that stressed allegiance over the rule of law."
This practice continued throughout the entire Soviet regime as the
Communist party suppressed organized crime gangs and regulated the
majority of white-collar criminal activity 2 Due to its control over the
criminal market, the Communist party has been described as "the
largest criminal organization in the world. " z2
The "iron curtain" has fallen and the Cold War is over; yet, the
criminal activity synonymous with the former leadership of the Soviet
Union has expanded into transnational activity.23 The United States is
one lucrative location for this activity. The growth of this syndicate
has prompted the United States Department of Justice to elevate the
18. See Mike Cormaney, RICO in Russia: Effective Controlof Organized Crime orAnother
Empty Promise?,7 TRANSNAT'L L. & CONTEMP. PROBS. 261,269 (1997).
19. See J. Michael Waller, Organized Crime and the Russian State, 2 DEMOKRAVIZATI-
AZATSIYA 364, 371 (1994).
20. See Cormaney, supra note 18, at 269 n.38 (citing STEPHEN HANDELMAN, COMRADE
CUMINAL: RussiA's NEw MAFrA 96-100 (1995); see also Vladimir Schlapentokh,
Russia. Privatization and Illegalization of Social and PoliticalLife, 19 WASH. Q. 65
(Winter 1996); see generally JorN PATTON WILLERTON, JR., PATRONAGE AND PoLI-
TIcS IN THE SoVIT UNION (1985).
21. See Cormaney, supranote 18, at 269 n.39 (citing Michael Scammell, What's Goodfor
the Mafia Is GoodFor Russia, N.Y. TIMES, Dec. 26, 1993, at 11) ("Dictatorships of
both the left and right ... regard organized crime as their own prerogative and can-
not tolerate competition."). For a detailed account of the corruption and criminal
activities of the Communist party of the Soviet Union, see generally Arkady Vaks-
berg, THE SOVIET MAFIA Cohn & Elizabeth Roberts trans., Weidenfeld and
Nicolson, pub., 1991).
22. Cormaney, supranote 18, at 270.
23. See Boylan, supra note 4, at 1999 (demonstrating that not only is corruption rampant
throughout Russian government but its connection to Russian gangs in the West
equates it with international narcotics smuggling, loan sharking, and other serious
crimes).
Russian mafia to its highest investigative priority.2 4 This places them

on a level with La Cosa Nostra (the Italian Mafia), Columbian cartels,
and the Chinese triads.
The 1988 Vienna Conference recognized that "organized crime is
characterized by the ability to expand into new activities or geographi-
cal areas as soon as the opportunity arises or the necessity demands." 6
The Russian mafia seems to have demonstrated this by its activity in
the areas of prostitution, drug trafficking, money laundering, and nu-
clear weapons.27 At least 200 of Russia's criminal groups maintain
relationships with United States-based street gangs in seventeen cities
and fourteen states nationwide.H The Russian Mafia has also estab-
lished ties with other criminal groups, including La Cosa Nostra and
Columbian cocaine cartels, making its diverse networks and crimes
more difficult for law enforcement officials to detect.29 This problem
is complicated by the protective nature of immigrant communities
within the United States, which provide an interdependent support
staff that contributes to a criminal ring's ability to operate covertly.3"
2. Role of the Russian Mafia in Government Corruption
With the advent of perestroika, the line distinguishing the gov-

ernment from the mafia has become difficult to determine; both have
prospered through the black market and corruption.3 The word
"mafiya" was first used to describe corrupt Soviet bureaucrats.32 By the
early 1990s, the term "mafiya" was also used to describe the Soviet
24. See Selwyn Raab, Influx ofRussian Gangsters Troubles F.B.L in Brooklyn, N.Y. TIMES,
Aug. 23, 1994, atAl, B2.
25. See Raab, supranote 24, at B2.
26. United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psy-
chotropic Substances, U.N. ESCOR, U.N. Doc. E/Conf. 82/15, reprinted in 28
I.L.M. 493 (1989).
27. See Peter J. Vassalo, The New Ivan the Terrible: Problems in International Criminal
Enforcement & the Specter of the Russian Mafia, 28 CASE W. REs. J. INT'L L. 173, 174
(1996).
28. See D.E. Lungren, Russian Organized Crime: California'sNewest Threat, California
Department of Justice, March 1996, at 9.
29. See Vassalo, supra.note27, at 181.
30. See LYDIA S. ROSNER, THE SOVIET WAY OF CRuME: BEATING THE SYSTEM IN THE
SOVIET UNION AND THlE U.SA 80 (1986).
31. See Peter Daniel DiPaola, The Criminal Time Bomb: An Examination of the Effect of
the Russian Mafiya on the Newly Independent States ofthe FormerSoviet Union, 4 IND.
J. GLOBAL LEGAL STUD. 145, 148 (1996).
32. See DiPaola, supra note 31, at 149.
19991 TRAFFIC JAM
government officials who continued the tradition of corruption left

over from the Communist regime. 33
Corruption has affected local law enforcement as well. By 1991,
an annual average of 20,000 police officers 'were fired for "collusion
with the mafia."4 The Global Survival Network (GSN), a nongov-
ernmental organization investigating the trafficking of women from
the former Soviet Union, conducted interviews which revealed that
some Russian police and officials of the state intelligence agency, the
Federal Security Bureau (FSB), are "involved in the sex trade." 35 In
fact, GSN's undercover research showed that one 21-year-old female
pimp paid the police 50,000 to 100,000 rubles, approximately $50-6
$100, per night for each of her girls to avoid arrest or interrogation.
C. Involvement ofthe Russian Mafia in ForcedProstitution
One business that is growing particularly fast is forced prostitu-

tion. As an industry, prostitution may continue to grow due to an
increasing market of international customers desiring sexual services. 7
"In addition to the tourist agencies, hotels, and transportation serv-.
ices, the police and the government bureaucracy all benefit directly or
indirectly from forced prostitution .... 38 "In some countries ...
government officials and the local elites have come to accept the in-
stitutionalization of violence in the form of forced prostitution
because they view the practice as the key to regional development and
an important source of foreign currency.""
The concept of forced prostitution derives from an individual's
inability to leave a sexually exploitative relationship." This is chiefly
33. See DiPaola, supranote 31, at 149.

34. Claire Sterling, Redfelas: The Growing Power of Russia's Mob, Naw REPuBLIc, Apr.
11, 1994, at 19.
35. GSN, supra note 3, at 41.
36. See GSN, supranote 3, at 41.
37. See Nora V. Demleitner, Forced Prostitution:Naming an International Offense, 18
Foa-AM IN'L L.J. 163, 190 (1994).
38. Demleitner, supra note 37, at 190.
39. Demleitner, supra note 37, at 190.
40. See Jessica N. Drexler, Comment, Government's Role In Turning Tricks: The World's
Oldest Profession in the Netherlands and the United States, 15 DicK. J. IN'L L. 201,
206-08 (1996); see also Janie Chuang, Redirecting the Debate Over Trafficking In
Women: Definitions, Paradigmsand Contexts, 11 HARv. HUM. RTs. J. 65, 68 (1998)
("Trafficking in women is fueled by poverty, sexism, and racism, all of which com-
bine to create a situation of unequal bargaining power or vulnerability.").
caused by supprt
the fact that, be
afamly
my in many.countries,
. 41 a woman's only way to
support a family may be prostitution. In Russia 98 percent of
women are literate and many have a university education.42 Yet, in
some parts of the Russian Federation, women account for nearly 90%
of the unemployed population. Thus, women are willing to accept
offers of employment abroad as "models," "dancers," and "waitresses."
It is only later that they realize that they were offered false employ-
ment and have been sold into prostitution by organized criminals."
This agreement is often formalized in a contract4' that is unen-
forceable in a court of law due to its criminal nature. Whether
through legitimate paperwork or false identification, traffickers use a
variety of means to bring the women into the United States. 46 The
Russian traffickers are able to purchase false or altered passports from
authorities in the Ministry of Foreign Affairs, or through companies
with connections to Interpol (the international police organization)
which change the name, nationality, or age of a person traveling
abroad. 47
Once the women have entered the United States, local mafiosi
confiscate their documentation.48 These women do not have knowl-
edge of U.S. culture or proper paperwork and, due to the formality of
the arrangement and their ignorance as to their legal rights, believe
they must work off debts to the mob of thousands of dollars for pass-
ports and other documentation obtained in their country of origin. 49
This phenomenon is referred to as "debt bondage," a practice out-
lawed by many treaties and conventions, defined as "the status or
condition arising from a pledge by a debtor of his personal services or
41. See Demleimer, supranote 37, at 187.

45. See GSN, supranote 3, at 15, 20-21.
46. See GSN, supra note 3, at 15 (demonstrating that traffickers "use tourist, entertain-
ment, fiance, student, and business visas").
48. See GSN, supra note 3, at 19, 38. By tricking the women into handing over their
documentation, traffickers are essentially making them legal non-persons in the U.S.
See GSN, supranote 3, at 19.
49. See GSN, supra note 3, at 19-21. GSN estimates that Eastern European women sent
to Japan are indebted by up to $35,000.
1999] TRAFFIC JAM
of those of a person under his control as security for a debt, if the

value of those services... are not respectively limited and defined." 0
Leaving may not be a desirable option for these women. First,
deportation provides no relief since the women must pay the debts
allegedly accrued or face personal danger and threats of violence to
their families in Russia. This type of intimidation is also used to keep
women from going to law enforcement officials.51 Second, even if offi-
cials do respond to prostitution, they reinforce the women's
helplessness because current laws punish the prostitutes.5 2 If the state
takes action against women, they have no choice other than to rely on
their pimps for bail, thereby maintaining the debt bondage scheme.
Forced prostitution has become a highly organized and extremely
profitable business for organized crime syndicates, particularly the
Russian mafia.53 Those responsible for trafficking are members of
highly organized networks that recruit and maintain these prostitution
rings.' These networks involve collaboration between intermediaries
in Russian villages and regional recruiters, and extend to the interna-
tional web of organized criminals. Even when the Russian mafia is
not directly responsible for the trafficking of women overseas, its or-
ganizations may provide security and protection for such operations. 56
Therefore, the presence of organized crime becomes 57
vital to the suc-
cess of the trafficking, whether directly or indirectly.
50. Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Insti-
tutions and Practices Similar to Slavery, Sept. 7, 1956, 266 U.N.T.S. 40, 41.
51. See Lan Cao, Note, Illegal Traffic in Women: A Civil RICO Proposal 96 YALE L.
1297, 1303 (1987).
52. See Cao, supra note 51, at 1305.
53. See Vassalo, supra note 27, at 174 (describing the Russian Mafia as "a union of rack-
eteers without equal," and citing their sphere of criminal activities to include
prostitution "on a monumental and increasingly international scale") (quoting Ster-
ling, supranote 34, at 20).
54. See Cao, supra note 51, at 1299 (To run and furnish the sex slave business, women
are recruited by organized rings of procurers, using fraudulent recruiting methods.
For example, they are abducted, procured through organized crime, recruited by
phony employment agencies, and trafficked into the U.S. via false marriage con-
tracts.").
55. See Cao, supra note 51, at 1300-02.
57. See GLOBAL SURVIVAL NETwORK, BOUGHr & SOLD: ORGANIZED CRIME & ILLEGAL
TRAFFICKING OF WOMEN Our op RussiA, PRELIMINARY REPORT 8 (Spring 1997).
II. CURRENT LAW
A. InternationalResponses to Trafficking
Although the practice of forced prostitution is still prevalent in

our global society, the status and treatment of women has been the
subject of several international legal instruments since the turn of the
century. One of the earliest treaties, the Convention for the Suppres-
sion of the White Slave Traffic, 58 was signed in 1910. This treaty:
bound its thirteen signatories to severely punish any person

who hired, abducted, or enticed for immoral purposes any
women under the age of twenty-one, or used violence,
threats, fraud, or any compulsion on a wom(a)n over
twenty-one to accomplish the same purpose, even if he or
she committed the acts constituting the offense in different
59
countries.
The Convention referred to "anti-trafficking," as opposed to "anti-

forced prostitution," because forced prostitution was considered a
domestic area of concern. 60 Therefore, the signatories of this Conven-
tion created few international directives to deal with the specific
problem of trafficking for purposes of prostitution."
Shortly after the 1910 Convention, the Covenant of the League
of Nations62 was developed, which entrusted the League with the
"general supervision over the execution of agreements with regard to
the traffic in women and children, and the traffic in opium and other
dangerous drugs."" The International Convention for the Suppression
of the Traffic of Women and Children furthered this initiative by en-
couraging states to take a domestic approach to the trafficking
problem by drafting legislation to promote legitimate employment for
58. Convention for the Suppression of the White Slave Traffic, May 4, 1910, 211 Con-
sol. T.S. 45 [hereinafter 1910 Convention]. For a discussion of the term "white
slavery," see Demleitner, supra note 37, at 165-67 ("The term 'white slave' had
originally been used to apply to factory workers in England but fell into disuse after
the passage of the ten-hour factory law.").
59. Demleitner, supra note 37, at 168-69.
60. See Demleitner, supra note 37, at 168 n.20.
61. See Demleitner, supranote 37, at 169.
62. LEAGUE OF NATiONS COVENANT art. I-XXVI.
63. LEAGUE OF NATIONS CoVENANT art. XXIII, para. c.
19991 TRAFFIC JAM
trafficked immigrants and emigrants.6 This approach confused inter-

national signatories who found it difficult to distinguish between
international trafficking and the national aspects of commercialized
prostitution. A special fact-finding Commission demonstrated that
the existence of licensed brothels was a key incentive to traffic, both
nationally and internationally, and established that "profit•... is at the
root of the whole business [of forced prostitution].,6' It concluded
that the business of prostitution was much more socially detrimental
than prostitution itself because it allowed for third-party [pimp]
benefits by merely providing the services of another [prostitutes]. 67 It
further noted that prostituted women were certain to become com-
pletely demoralized by their significant dependency on their exploiters
since they knew little of the language or customs of the receiving
country." With this in mind, the International Convention of 1933
extended the scope of the acts criminalized by declaring that even the
prostitute's consent did not exempt those responsible for procure-
69
ment.
The League of Nations, in 1937, prepared a draft Convention in
order to consolidate earlier agreements, provide prosecutorial tools
against brothel managers, and strengthen the international commit-
ment to eradicate the trafficking of women.70 It was the first
international treaty to address international enforcement by declaring
that trafficking was at the center of the system of international pros-
titution.71 The goal of the 1937 Convention was to provide for the
rehabilitation of victims and curb third-party profit.' Unfortunately,
the treaty was never signed into law due to the onset of World War
73
I1.
64. See Demleitner, supra note 37, at 170 n.32 (citing the International Convention for
the Suppression in the Traffic in Women and Children, Sept. 30, 1921, 9. L.N.T.S.
415, amended by the Protocol to Amend the Convention for the Suppression of the
Traffic in Women and Children, concluded at Geneva on 30 September 1921, and
the Convention for the Suppression of the Traffic in Women of Full Age, concluded
at Geneva on 11 October 1933, Nov. 12, 1947, 53 U.N.T.S. 13).
65. See Demleitner, supra note 37, at 170.
66. Demleitner, supranote 37, at 171.
In 1946, the United Nations Economic and Social Council cre-

ated the Commission on the Status of Women.74 Through various
initiatives including a study to establish legislative possibilities, this
Council generated the Convention for the Suppression of Traffic in
Persons and of the Exploitation of the Prostitution of Others. 75 Sig-
natories to this document commit to three obligations: (1) to adhere
to the concept of anti-trafficking; (2) to abide by current enforcement
measures; and (3) to agree to the use of rehabilitative and educational
tools to help victims of prostitution in areas not addressed by criminal
laws. 76 Under the 1949 Convention, prostitutes were viewed as the
victims of traffickers.77As this Convention echoed the goals of the
1937 Convention, prostitution was considered legal, and parties to the
treaty agreed that prostituted women would "not be punished or sub-
jected to any special supervision or registration."78
So as not to inflict more regulation on the trafficked individual
herself, the 1949 Convention prohibited the procurement and con-
sumption of prostitution that led to the human rights violations the
Convention was charged to prevent.7" In order to accomplish this,
certain provisions demanded that foreign convictions of traffickers be
recognized and enforced in signatory countries.80 This bold move was
to be facilitated by joint investigations, leading to an exchange of in-
formation and the extradition of those responsible for the trafficking.8'
The 1949 Convention set out to criminally punish any person who
"[p]rocures, entices or leads away, for purposes of prostitution, an-
other person, even with the consent of that person; [e]xploits the
prostitution of another person, even with the consent of that person,"
and divided the punishable offenses into two categories, (1) prepara-
74. See Toepfer & Wells, supra note 6, at 94.

75. See Toepfer & Wells, supra note 6, at 95; see also Convention for the Suppression of
Traffic in Persons and of the Exploitation of the Prostitution of Others, openedfr
signature Mar. 21, 1950, 96 U.N.T.S. 272 (entered into force July 25, 1951)
[hereinafter 1949 Convention].
76. See Chuang, supra note 40, at 76. This last point, regarding states' use of welfare
tools, will not be discussed in this Article, but experts believe this to be one of the
most important techniques to resolve this problem.
78. Toepfer & Wells, supranote 6, at 96.
79. See Toepfer & Wells, supra note 6, at 96-97.
1999] TRAFFIC JAM
tory acts and (2) intentional participation. Although no specific pen-

alties were offered, preventive measures were established 3 and the
Convention mandated that each signatory establish an authority to
centralize information regarding anti-trafficking violations
84
and report
directly to the Secretary-General of the United Nations.
The most recent trend of anti-trafficking treaties is seen in the
1979 Convention on the Elimination of All Forms of Discrimination
Against Women.8 5 The provision against trafficking in Article Six of
CEDAW mandates that "States Parties shall take all appropriate
measures, including legislation, to suppress all forms of traffic in
women and exploitation of prostitution of women."86
Many nations have signed international legal instruments recog-
nizing that trafficking in women is a violation of human rights.87
Regional charters and human rights documents which prohibit traf-
ficking also exist. 88 The International Labour Organization (ILO) has
adopted two conventions which may be applicable to trafficking in
prostitution: the Forced or Compulsory Labor Convention and the
82. Toepfer & Wells, supra note 6, at 96, 99. Note that Article 1 of the 1949 Conven-
tion makes procurement and exploitation of persons for prostitution punishable even
if the victim was not transported across international borders and the prosecuting
authority does not have to show that procurers gained fimancially from their activity.
83. See Demleitner, supra note 37, at 174. These preventive measures included:
[T]he protection of immigrants and emigrants at points of arrival and de-
parture, publicity to warn of the dangers of trafficking, the supervision of
railway stations, airports, and seaports, informing the appropriate authority
of the arrival of persons who appear to be either procurers or victims, and
the control of employment agencies. In addition, the states who were par-
ties committed to repatriate victims 'who desire to be repatriated or who
may be claimed by persons exercising authority over them or whose expul-
sion is ordered in conformity with law.'
84. See 1949 Convention, supra note 75, 96 U.N.T.S. at 280.
85. Convention on the Elimination of All Forms of Discrimination Against Women,
opened.fr signatureMar. 1, 1980, 1249 U.N.T.S. 14, 17 (entered into force Sept. 3,
1981) [hereinafter CEDAW]; see also Toepfer & Wells, supranote 6, at 100.
86. Toepfer & Wells, supra note 6, at 101 (quoting CEDAW, supra note 85, at 17).
87. See Toepfer & Wells, supra note 6, at 93 (noting that the status of women has been
the subject of over twenty international legal instruments since 1945); see also Slavery
Convention, Sept. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253; 1956 Supplementary
Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Prac-
tices Similar to Slavery, enteredintoforceApr. 30, 1957, 266 U.N.T.S. 40.
88. See Toepfer & Wells, supranote 6, at 111-27.
89. Convention Concerning Forced or Compulsory Labour, adoptedJune 28, 1930, 39
U.N.T.S. 55.
1957 Abolition of Forced Labour Convention." Forced labor is de-

fined as "all work or service which is exacted from any person under
the menace of any penalty and for which the said person has not of-
fered himself voluntarily."1 Many states are parties to at least one of
these conventions, including the United States and the Russian Fed-
eration.
A 1972 United Nations Subcommission on the Abolition of
Slavery authorized a working group on prostitution whose function
was to compile information and draft recommendations. 2 This
working group, however, had no enforcement capability. Following
the findings of the Subcommission, the United Nations virtually held
that trafficking for the purposes of prostitution is a violation of Article
One of the Universal Declaration of Human Rights ("All human be-
ings are born free and equal in dignity, and rights"), of Article Four
("No one shall be held in slavery or servitude"), and of Article Five
("No one shall be subjected to torture or to cruel, inhuman or de-
grading treatment or punishment") 93 The debt bondage schemes
associated with trafficking operations also establish trafficking as a
forbidden slavery-like practice under international law.94
Some commentators consider the Inter-American system to be
the best forum within which to combat the trafficking of women.95
Loosely modeled after a somewhat ineffective European Convention,
the Inter-American Commission on Human Rights provides more
opportunities for a trafficked individual to assert her own rights be-
cause it allows her to file a complaint herself rather than merely
granting her state standing to bring an action." Unfortunately, in
both the Inter-American system and the European Court, the Com-
90. The 1957 Abolition of Forced Labor Convention, June 25, 1957, 320 U.N.T.S.
291.
91. Convention Concerning Forced or Compulsory Labour, supra note 89, at 58.
92. See E.S.C. Res. 1695 (LII), U.N. ESCOR, 52d Sess., Supp. No. 1, at 22, U.N. Doc.
E/5183 (1972).
93. See Working Group on ContemporaryForms ofSlavery, U.N. Commission on Human
Rights' Sub-Commission on Prevention of Discrimination and Protection of Minori-
ties, 16th Sess., Agenda Item 4, U.N. Doc. EICN.4/Sub.2IAC.211991/l/Add.1
(1991).
94. See Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery, sitpranote 87, at 41.
95. See Toepfer & Wells, supranote 6, at 126.
96. See Toepfer & Wells, supra note 6, at 123-25. Although recent amendmants will
hopefilly make it more effective, the European Convention's language has been in-
terpreted very narrowly and is not currently effective in the prohibition of trafficking.
See Toepfer & Wells, supranote 6, at 121-23.
1999] TRAFFIC JAM
mission's right to receive inter-state complaints depends wholly upon

the permission of the violating state. 97 Although the use of the Inter-
American Court on Human Rights is procedurally constrained, their
decisions are enforceable. 8 The Commission may make recommen-
dations, and if the situation remains unchanged, the Commission may
decide to publish its report.99 The hope is that a stgte may have little
choice other than to assert its human rights directives when other
states apply negative publicity and moral pressure."'
While the international debate has attempted to characterize
forced prostitution as slavery, the term "slavery" fails to truly describe
all of the violations that this practice actually encompasses.01 Were the
United Nations and regional organizations to acknowledge and label
forced prostitution as an international crime, their member states
would in effect be enacting policy initiatives that outlaw and crimi-
nalize this practice.0 2 While forced prostitution could'be prosecuted
in most countries under a variety of statutes, the international com-
munity has not succeeded in its attempts to decrease the prevalence of
the practice, because of poor international enforcement of women's
rights. ' 3
1. Means of Extradition
Efforts by the United States to prosecute criminals located abroad

are repeatedly hindered by "considerations of the sovereignty, lws,
and political reactions of foreign states."' ° Absent a system of inter-
national criminal law, extradition treaties are the only means by which
a state can gain jurisdiction over an individual outside its borders

102. Cf Charles Lewis Nier, III, Guilty as Charged:Malcolm X and His ision of Racial
Justice ForAfrican Americans Through Utilization of the United Nations International
Human Rights Provisions and Institutions, 16 DicI. J. INT'L L. 149, 173 (1997)
(demonstrating that while the Universal Declaration of Human Rights did not bind
U.N. member countries, it did act as a global paradigm).
104. Ethan A. Nadelmann, The Evolution of United States Involvement in the International
Rendition ofFugitive Criminals,25 N.Y.U. J. IN'. L. & POL. 813, 814 (1993).
whom it seeks to prosecute for an alleged wrongdoing. 05 The Supreme

Court stated in Factorv. Laubenheimer.
the principles of international law recognize no right to ex-

tradition apart from treaty. While a government may ...
surrender a fugitive from justice to the country from which
he has fled... the legal right to demand his extradition and
the correlative duty to surrender him to the demanding
country exist only when created by treaty.' °6
Extradition provides for the transfer of an accused person from

one nation to his own country or the place where the illegal activity
occurred so that the person may face criminal charges. Both treaties
and principles of comity between nations govern the extradition proc-
ess. 07 These agreements give nations the opportunity to resolve
territorial disputes without resorting to extraterritorial abduction. The
agreements often utilize one of two methods to make extradition ef-
fective:0 . they must either recognize the concept of dual criminality-
that the activity was considered criminal by both the receiving and
extraditing countries-or include a list of crimes for which a country
will allow extradition.' Although these treaties have often proven ef-
fective, there is no general duty for non-signatory states to bring
fugitives to justice. Unfortunately, strained diplomatic relations be-
105. See generally Marian Nash Leich, ContemporaryPracticeof the United States Relating to
InternationalLaw, 76 AM. J. Itr', L. 154 (1982) (providing an in-depth discussion
of extradition treaties).
106. Factor,290 U.S. 276, 287 (1933).
107. See Sharon A. Williams, The Double Criminality Rule andExtradition:A Comparative
Analysis, 15 NovA L. REv. 581, 582-83 (1991).
108. See Geoffrey K. Watson, The Passive PersonalityPrinciple, 28 TEx. INT'L L.J. 1, 42
(1993) (citing a letter rogatory used in absence of extradition treaty).
109. See Williams, supra note 107, at 583. Article 240 of the Russian Criminal Code
criminalizes coercing or forcing a person into prostitution by means of force or threat
of force, blackmail, destruction of property, or deceit; and imposes a fine of 200 to
500 minimal salaries or loss of freedom for up to four years. Ugolovnyi Kodeks RF
Sec. 1 Art. 240. Section two of Article 240 targets organized criminal activity by
criminalizing coercion into prostitution by members of an organized group, with a
punishment of a fine of 700-1,000 minimal salaries or loss of freedom for three to six
years. Ugolovnyi Kodeks RF Sec.' 2 Art. 240. Article 241 criminalizes organizing or
holding property for the purposes of prostitution, and imposes a fine of 700-1,000
minimal salaries or loss of freedom for up to five years. Ugolovnyi Kodeks RF Art.
241. In fact, a comprehensive law introduced by the Duma in January 1995, uses
elements of America's RICO, possibly leading to the expansion of the international
criminal net.
19991 TRAFFIC JAM
tween countries may lead to the denial of extradition and, therefore,

the obstruction of global justice.
a. Mutual Legal Assistance
Although it has been argued that many of the treaties cited here
lack substantial enforcement capability, 11 ° mutual legal assistance is
another way to prevent the current levels of trafficking into the
United States. Mutual legal assistance is the means by which a country
obtains, for use in its investigational and judicial proceedings, evi-
dence and information that is outside its borders. This can be
accomplished by formal requests (a letter rogatory) 1'1 or the more re-
cent development of a mutual legal assistance treaty (MLAT) .2 One
possible theory is that there should be a similar type of regional mul-
tilateral agreement between sending, receiving and transit countries to
provide assistance to trafficked persons and to prosecute traffickers.
This argument is supported by the classification of forced prostitution
as a crime under the Geneva Convention and its additional proto-
COls.
13
Conventions that have successfully fought other trafficking
problems demonstrate a recent trend of bold enforcement that could
be furthered by following the recommendations herein, as these trea-
ties force the signatory parties to surrender certain areas of sovereignty
110. See Stephanie Farrior, The InternationalLaw on Trafficking in Women and Children
fir Prostitution:Making it Live Up to Its Potential 10 HIARv. HuM. RTs. J. 213
(1997).
111. See Robert L. Pisani & Robert Fogelnest, Esq., The United States Treaties on Mutual
Assistance in CriminalMatters,in INTERNATiONAL CiumiNAL. LAW: A GUIDE TO U.S.
PacTcE AND PROCEDUrE 233 (Ved P. Nanda & Cherif Bassiouni eds., 1987). A
letter rogatory is a centuries-old procedure in which a court in one country requests a
court in another country to render assistance based on friendly relations and reci-
procity.
112. See Pisani & Fogelnest, supra note 111, at 233. A mutual legal assistance treaty is a
relatively new phenomenon that was necessitated by the increasing interdependence
of countries and the growing international aspects of crime. These treaties typically
require criminal duality, i.e., offense must be listed as a crime in both the sending and
receiving countries. The contents of the requests are set forth in the treaties, as well as
the types of assistance which can be provided. Some advantages of this arrangement
include efficiency, mandatory reciprocity, and access to a broad scope of investigative
materials. One example is a mutual legal assistance treaty with specific drug traffick-
ing provisions that was signed after the success of the Vienna Convention. See
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
supranote 26, at 483.
113. See Demleiter, supranote 37, at 196.
by allowing foreign intrusion into what are typically domestic con-

114
cerns.
Another option under the mutual legal assistance doctrine is to
employ a letter rogatory. Under a letter rogatory, the appropriate em-
bassy, ministry of justice, or department of state requests the
extradition of an individual or evidence via the diplomatic channels of
the foreign consulate. However, MLATs are preferable to letters ro-
gatory because compliance with the latter is usually neither mandatory
nor timely.1 5 The first MLAT involving the United States was a 1973
Treaty on Mutual Assistance in Criminal Matters with Switzerland." 6
It was unique in that it created a legal obligation that one state mutu-
ally assist the other in investigating transnational crime. The most
famous organized crime-focused MLAT is the MLAT on extradition
between Italy and the United States." 7 It requires all agencies with
criminal investigative functions to request assistance through the At-
torney General." 8 This agreement was crucial in the discovery of an
international narcotics conspiracy known as "the Pizza Connection." 9
It allowed for the live testimony of two Italian nationals and the abil-
ity to facilitate the transfer of witnesses. 2 Due to its reliable
application, the MLAT has become an effective tool for prosecutors
across the country.121
114. See Vassalo, supranote 27, at 188.

115. See Pisani & Fogelnest, supra note 111, at 233 n.1 and accompanying text.
116. See Treaty on Mutual Assistance in Criminal Matters, May 25, 1973, U.S.-Switz.,
art. 9, 27 U.S.T. 2019, 2035.
117. See Italian Republic on Mutual Assistance in Criminal Matters, Nov. 9, 1982, U.S.-
Italy, S. Treaty Doc. No. 25, 98th Cong. 2d. Sess. (1984) [hereinafter Treaty on
Mutual Assistance in Criminal Matters, U.S.-Italy]. A separate extradition treaty was
entered into between the United States and Italy in 1983. See Agreement on Extradi-
tion, Oct. 13, 1983, U.S.-Italy, T.I.A.S. No. 10,837 (allowing a United States
prosecutor to be stationed abroad to bring Italian law in line with U.S. law).
118. See Treaty on Mutual Assistance in Criminal Matters, U.S.-Italy, supranote 117.
119. United States v. Casamento, 887 F.2d 1141, 1147 (2d Cir. 1989). For more infor-
mation on "the Pizza Connection," see Richard A. Martin, Problems in International
Law Enforcement, 14 FoRaDH INT'L LJ. 519, 522 (1990-1991).
120. See Martin, supra note 119, at 522.
121. See Dianne Marie Amann, A Whipsaw Cuts Both Ways: The PrivilegeAgainst Self-
Incrimination in an International Context, 45 UCLA L. Rav. 1201, 1265 (1998)
("Requests, made pursuant to U.S. treaties more than tripled in the last decade, as
prosecutors took advantage of the ability to secure admissible evidence with speed
and efficiency.").
1999] TRAFFIC JAM
b. Prescriptive Jurisdiction Rule
Customary international law holds that a state may not maintain

sovereignty over another state. ' 2 This bar on the use of one state's
domestic law in another state, or prescriptive jurisdiction, effectively
limits a state's ability to conduct legal investigations or execute arrest
power within its jurisdiction.'3 The prescriptive jurisdiction rule does
allow for exceptions in cases of a convention or customary interna-
1 24 Noriega
tional practice, as demonstrated in United States v. Noriega.
was indicted by a federal grand jury for numerous violations of United
States drug-trafficking laws. 125 Although none of these criminal viola-
tions occurred within the territory of the United States, the court
justified the prescription of United States law because Noriega's of-
fense was considered by customary international law to be a
"universally condemned" offense.1 26 Since Noriega's conduct fell un-
der the exception for "universally condemned" offenses, the court was
able to claim jurisdiction. 127 Consequently, the successful use of the
rule is limited by its application to recognized areas of criminal activ-
ity; 2 1 which include slave tradings, hijackings, piracy, war crimes, and
genocide' 29 These offenses are defined as "offenses recognized by the
community of nations as of universal concern.""1 0
In UnitedStates v. Alvarez-Machain, the Supreme Court analyzed
the extent to which the prescriptive jurisdiction limitation could be
applied in considering the abduction and removal of a Mexican na-
tional to the U.S. for kidnapping and murder charges." 1 Although the
criminal act of abduction does not fall under this prescriptive juris-
122. See Vassalo, supra note 27, at 182 (citing S.S. Lotus (Fr. v. Turk.), 1927 P.C.IJ. (ser.
A) No. 9, at (Sept. 7)).
123. See Vassalo, supra note 27, at 186-87.
124. 746 F. Supp. 1506 (S.D. Fla. 1990).
125. See Noriega, 746 F. Supp. at 1510.
126. See Noriega, 746 F. Supp. at 1514. Noriega was actually prosecuted under RICO, 18
U.S.C. § 1962, for promoting, establishing or carrying on an unlawful activity in in-
terstate or foreign commerce. 746 F. Supp. at 1510.
128. See United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991).
129. See Yunis, 924 F.2d at 1091.
130. Yunis, 924 F.2d at 1091 (citing RESTATEMENT (THIRD) OF THE FOREIGN RELATONS
LAW OF THE UNITED STATES §§ 404, 423 (1987)).
131. 504 U.S. 655 (1992).
diction exception, jurisdiction 32 is permitted if it is done with the con-

sent of the local authorities. 1
Extraterritorial prescription is allowed according to some inter-
national law doctrines. 33 The most notable is the "effects principle", a
doctrine which looks to the international effects of a particular crime
to establish if a particular country can have jurisdiction over an indi-
vidual. Guided by a standard of reasonableness, m the effects principle
is yet another means by which the United States may apply its law
internationally.
2. The International Criminal Court
Due to an inability to enforce international criminal standards,

our society is arguably unequipped to deal with crime at the interna-
tional level. One possible remedy to this situation is the International
Criminal Court. Discussion of an ICC began during World War II in
response to atrocities committed by the Nazis in Europe.'13 Inquiries
into the establishment of the ICC were partially answered on August
8, 1945, when the Allies agreed to the creation of an international
military tribunal in Nuremburg for the prosecution of Axis war crimi-
nals." 6 For political 1 7and structural reasons, this tribunal has not
evolved into an ICC.
In 1949, the General Assembly of the United Nations invited an
International Law Commission (ILC) to study the possibility of es-
tablishing a permanent international judicial body that would exercise
jurisdiction over authority granted by international conventions.
The ILC determined that the goal was desirable, but abandoned it due
to Cold War politics. 9 The United States has been supportive of this
132. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 432(2) (1986).
133. See The Research In International Law of the Harvard Law School, Jurisdiction With
Respect to Crime, 29 AM. J. INT'L L. 435, 445 (Supp. 11935).
134. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 402 cmt. d (1986).
135. See Joel Cavicchia, The ProspectsForAn InternationalCriminal Courtin the 1990"s,
10 Dicc J. INT'L L. 223, 225 (1992).
136. See Agreement for the Prosecution and Punishment of Major War Criminals of the
European Axis, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279.
137. See generally Cavicchia, supranote 135.
138. See Cavicchia, supra note 135, at 227 n.30 and accompanying text (citing GA. Res.
260(B)(III) at 177, U.N. Doc. A/810 (1948))."
139. See Cavicchia,supra note 135, at 234.
1999] TRAFFIC JAM
idea for over a decade. 40 In 1986, the Omnibus Security and Terror-
ism Act decreed that the President of the United States should
consider "the possibility of eventually establishing an international
tribunal for prosecuting terrorists."' 14' As recently as November 5,
1990, President Bush signed a law containing an amendment calling
for the President to report to Congress the results of his efforts re-
garding the establishment of an ICC to deal with criminal acts defined
in international conventions.'
Support for this idea can be found in other areas of the world as
well. In 1987, the former General Secretary of the Communist Party
of the Soviet Union, Mikhail Gorbachev, distributed a communica-
tion to the United Nations that proposed the establishment of an
ICC.'" President Caeser Gaviria Trujillo of Columbia further sup-
ported this effort in 1990 when he indicated an interest to "explore
the possibility of creating an international or regional criminal juris-
diction to fight narcotrafficking and other related crimes that surpass
international borders." 1" In response to this public outcry, the World
Ministerial Conference on Organized Transnational Crime was estab-
lished on November 21, 1994, and 140 nations met and pledged to
unite in a sophisticated and coordinated force to examine the possi-
bility of international law enforcement. 145 Finally, that same year, the
ILC presented a final draft statutory code to the United Nations Gen-
eral Assembly.'46 Until recently, the United States had expressed its
support for the ICC, but the process has been slowed by concerns of
the U.S. delegation. 4 7 Nonetheless, a variety of issues remain to be
resolved, particularly with respect to the scope of the ICC's jurisdic-
140. Those in support of the idea include former Secretaries of State from George Schulz
to James Baker. See Cavicchia, supra note 135, at 261 nn.63-64 and accompanying
text.
141. Omnibus Security and Terrorism Act of 1986, Pub. L. No. 99-399, § 1201(d), 1986
U.S.C.CA.N. (100 Stat.) 853, 896.
142. H.R. 5114, 101st Cong., 2d Sess. 136 Cong. Rec. S16,216-17 (1990); the Foreign
Operations Appropriations for Fiscal Year 1991.
143. See John Quigley, Perestroika and InternationalLaw, 82 AM. J. INT'L L. 788, 794
(1988).
144. Cavicchia, supra note 135, at 23 (citing the inaugural address by President Caeser
Gaviria Trujillo of Columbia on Aug. 7, 1990).
145. See Joel S. Solomon, FormingA More Secure Union: The GrowingProblem of Organ-
ized Crime in EuropeAs A Challengeto NationalSovereignty, 13 Dict.J. Irr'L L. 623,
643-44 (1995).
146. See Solomon, supranote 145.
147. Thomas W. Lippman, America Avoids the Stand- Why the U.S. Objects to a World
Criminal Court WAsH. Posrt, July 26, 1998, at Cl.
MICHIGAN JOURNAL OF GENDER &" LAW [Vol. 6.:221
tion. In all likelihood, the ICC's structure would to some degree re-
semble the United Nations war crimes tribunals, and its jurisdiction
may include genocide, war crimes, crimes against humanity, traffick-
ing and, potentially, crimes of aggression.'4 8
As the world community develops a definitive interest in tran-
snational crime, the establishment of an International Criminal Court
may prove to be another linchpin that connects countries' political
and economic interests. For the ICC to become a reality, a mutilateral
convention would be necessary to establish the extent of its jurisdic-
tion, as well as to determine other important issues.1' If this
convention were to progress, the court would exist as a war crimes tri-
bunal, and as its role develops, might eventually maintain jurisdiction
over cross-border crimes and human rights abuses. 50 By providing a
forum for the prosecution of transnational crime, law enforcement
will be making a major step toward the eradication of what is quickly
becoming the most expeditious and lucrative venue for criminal activ-
ity.
3. International Justice Commission
Opponents of the ICC identify five obstacles: (1) lack of a stan-

dardized international criminal code; (2) dependence on voluntary
participation; (3) authoritative power which may confuse the benefits
of a comparable extradition treaty causing diversion of resources from
more practical and readily achievable means; (4) the glamorization of
148. See generally Sandra L. Jamison, A PermanentInternationalCiminalCourt:A Proposal

that Overcomes PastObjections,23 DENv. J. INT'L L. & POL'Y 419 (1994).
149. These issues include the court's structure, procedural guarantees, jurisdiction, en-
forcement, and penalties. See Jamison, supranote 148, at 445-5 1.
150. See generally Jamison, supra note 148, at 433-35 (citing M. CHERlU BASsioUNI, IN-
TERNATIONAL CRIMINAL LAw VOL. I: CRIMES 135 (1986)). Proposed coverage
includes:
1) Aggression, 2) War Crimes, 3) Unlawful Use of Weapons, 4) Crimes
Against Humanity, 5) Genocide, 6) Racial Discrimination and Apartheid,
7) Slavery, 8) Torture, 9) Unlawful Human Experimentation, 10) Piracy,
11) Aircraft Hijacking, 12) Threat and Use of Force Against Internation-
ally Protected Persons, 13) Taking of Civilian Hostages, 14) Drug
Offenses, 15) International Traffic in Obscene Publications, 16) Destruc-
tion and/or Theft of National Treasures, 17) Environmental Protection,
18) Theft of Nuclear Materials, 19) Unlawful Use of Mails, 20) Interfer-
ence with Submarine Cables, 21) Falsification and Counterfeiting, and 22)
Bribery of Foreign Public Officials.
19991 TRAFFIC JAM
crime by the international press; and (5) a politicized court that would
remove leaders for corrupt reasons. 5' These criticisms are genuine, but
without some type of body to facilitate the extradition process, the
same type of criminal havoc that has52
been let loose on contemporary
society will undoubtedly continue. 1
Recendy, an international justice commission has been proposed
that would consist of equal representation from participating states
and would be responsible for all extraditions.'1 3 If members attempted
to block extradition from their countries they would be subject to
economic sanctions."' The commission would ensure compliance
with what would essentially be a universally accepted extradition
treaty, yet would have no adjudicative function.'55 This in turn would
protect against political corruption because there would be no func-
tion for national favoritism.5 6 Many countries, however, fear a joint
criminal justice union because they may lose sovereignty. Another le-
gitimate concern is that by relinquishing sensitive data, they will also
be jeopardizing national safety and security, as well as individual pri-
vacy.' Although these reservations bear credence, by ultimately
accepting this suggestion, countries would not lose sovereignty; they
would merely establish a more efficient means of enforcing agree-
ments already in place. Based on the current global enthusiasm for the
international criminal court, the introduction of an international jus-
tice commission may be a good model by which to determine the
effectiveness of the ICC. The establishment of an international code
of laws would not only demonstrate international solidarity against
transnational criminal activity, but would also allow for the adoption
of proven domestic law into the international arena.
151. See Farah Hussain, Not6, A FunctionalResponse to International Crime: An Interna-

tionalJustice Commission, 70 ST.JoHN's L. REv. 755, 769-74 (1996).
152. See generally Abraham Abramovsky, Prosecutingthe "Russian Mafia" Recent Russian
Legislation andIncreasedBilateralCooperationMay Providethe Means, 37 VA.J. IN'L
L. 191, 194-98 (1996).
153. See Hussain, supra note 151, at 775.
155. See Hussain, supra note 151, at 776-77.
157. See Hussain, supra note 151, at 771-72.
MICHIGAN JOURNAL OF GENDER 6- LAW [Vol. 6:221
B. Inadequacy of CurrentEnforcement
The natural tendency in law enforcement is to punish those in-

volved in the crime. In prostitution, however, participating women
are the victims not the perpetrators. The substantive terms of the cur-
rent international gender-based treaties are, by themselves, inadequate
for effective enforcement against the trafficking of women.158 Al-
though the treaties discussed above demonstrate that trafficking
violates international law, they do not provide trafficked women with
the right to bring a claim against their procurers, nor do they require a
party nation to file a legal claim on the women's behalf.159 Conse-
quently, the inability to realistically enforce the treaties undercuts
their substantive prohibitions. 60
This inadequacy is exemplified in the most significant of the
above mentioned treaties, CEDAW. Although the CEDAW provi-
sions establish committees to enforce the agreement, they provide no
tools for effective compliance.' The committees make recommenda-
tions based on reports from signature countries, but it is unclear to
whom these recommendations are made and who will enforce them. 62
The committees can influence the global community by making a re-
quest to the Secretary-General of the United Nations for more
information from a state party.'63 Thus, the committees have no power
to deal directly with state parties. In fact, many commentators believe
that CEDAW's most significant power is that which allows the com-
mittee to publicly review each member state's reports.'" These reports
allow for public documentation of a state's success or failure in the
implementation of treaty regulations."' Fear of unfavorable interna-
tional reaction may encourage some nations to enforce the text of the
treaty, but without a timetable for action, CEDAW's enforcement
158. See Farrior, supra note 110, at 213-14.

163. However, state parties have often failed to respond. "In 1984 and 1985, four out of
nine western nations that had ratified the Convention did not submit reports when
they were due." Toepfer & Wells, supra note 6, at 109 n.158.
164. See, e.g., Andrew C. Byrnes, The "Other"Human Rights Treaty Body: The Work of the
Committee on the Elimination of DcriminationAgainst Women, 14 YALE J. INT'L L.
1, 6 (1989).
165. See Margaret E. Galey, InternationalEnforcementof Women's Rights, 6 Hum. RTs. Q.
463,482-88 (1984).
1999] TRAFFIC JAM
capabilities do not meet its directives.' Thus, the goals of the treaties
will be difficult to achieve as long as treaty structures remain vague
and the reservations of signatory nations continue to exist. 167
Although the treaties have established significant rules with which
to combat trafficking, the reality is that women are still being ma-
nipulated. Current studies demonstrate that some trafficked women
are sold and resold in every part of the world, and that "[t]hose who
rebel against their exploiters are starved, whipped, burnt with ciga-
rette[s, and] forced to drink intoxicating drinks, drugs or herbal
concoctions, cut on the face, branded or locked up."' Even if these
women are fortunate enough not to live under such circumstances,
their legal avenues are blocked by the fact that most states criminalize
both prostitution and solicitation.6 9 One argument as to why these
treaties are not effectively enforced is that the agents of enforcement,
national governments, consistently lack the resources or political mo-
tivation to promote compliance with the treaties and agreements by
which they are bound.' 70 The countries that do possess the necessary
political will and resources may direct their efforts at target minority
groups and "[b]ecause women have not been viewed as a discrete and
insular 'minority' in most societies, they normally have not come
within the targeted groups requiring special governmental assistance
to promote their rights."' 7' Fortunately, the United States has recog-
nized this problem, as demonstrated by its development of criminal
legislation.1 2 Although significant steps have been made to help stop
future trafficking, more available tools must be recognized to supple-
ment that push and to help those already victimized.'7 3
III. LEGAL RECOMMENDATIONS UNDER EXISTING U.S. LAW
Currently, most of the receiving countries, even if they are party

to the penal codes of CEDAW, use their immigration laws to punish
and deport women rather than considering them victims of human
166. See Galey, supra note 165, at 464-66.

167. See Toepfer & Wells, supranote 6, at 106-07.
168. M. RrrA RozAmo, TRAFBICEING IN WOMEN AND CHILDREN IN INDIA 78 (1988).
169. See generally Raymond I. Parnas, Legislative Refirm of Prostitution Laws: Keeping
CommercialSex Out ofSight and Out ofMind, 21 SANTA ClkAR L. Rxv. 669 (1981).
170. See Galey, supra note 165, at 463.
171. Galey, supranote 165, at 464.
172. For a discussion of the Mann Act, see infra note 216 and accompanying text.
rights abuses.' 74 This general practice makes it impossible for women

to seek protection and pursue any legal battle against traffickers and
accomplices.' The following recommendations for legal action, some
of which may be brought by third-party representatives, may in fact
provide trafficked women this opportunity under current United
States law.
A. Recommendations #1 and#2: Criminal& CivilRICO Application
In 1970, Congress enacted the Organized Crime Control Act,

which included the Racketeer Influenced and Corrupt Organizations
law (RICO). 76 RICO was formed to address criminal enterprise.'7 Its
substantive provisions focus on "'patterns' of violence, the provision
of illegal goods and services, corruption in the labor or management
relations, corruption in government, and criminal fraud by, through,
or against various types of licit or illicit 'enterprises.' ,,178 Although ex-
isting federal and state laws already prohibited these activities,
Congress enacted RICO to provide enhanced criminal and civil pun-
ishments.'79 Thus, the underlying purpose of RICO is to eliminate
organized crime "by strengthening the legal tools in the evidence-
gathering process, by establishing new penal prohibitions, and by pro-
viding enhanced sanctions and new remedies to deal with the unlawful
activities of those engaged in organized crime."'80
The substantive elements of RICO that the government or a
person with standing'' must prove are: "(1) that the
174. See GSN, supra note 3, at 49.

175. See GSN, supra note 3, at 47.
176. 18 U.S.C. §§ 1961-1968 (1994).
177. See G. Robert Blakey & John Robert Blakey, Civil and CriminalRICO: An Overview
of the StatuteandIts Operation,64 DEF.COUNS. J. 36, 36 (1997).
178. Blakey & Blakey, supranote 177, at 36.
179. See Blakey & Blakey, supra note 177, at 36-37.
180. Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 922 (1970).
181. The First, Second, Eighth, and Ninth Circuits provide for a very narrow requirement
for standing under RICO. See Dana Wolff, The Frontierof RICO Standing. Inter-
pretingRICO's Conspiracy Provision To Realize Congress' Goal of Creatinga Powerfid
Crime-FightingWeapon, 21 J. LEGIS. 147, 148 (1995). These courts have decided
that to have standing to bring a civil RICO conspiracy claim, the plaintiff must allege
injury directly caused by a predicate act of racketeering. See Wolff, supra. The Third
and Seventh Circuits interpret RICO's standing requirements more broadly, holding
that alleging injury from an overt act that furthers a RICO conspiracy is sufficient to
confer standing, even if the overt act is not a predicate act of racketeering. See Wolff,
supra.
19991 TRAFFIC JAM
defendant 2 (2) through the commission of two or more acts (3) con-
stituting a 'pattern' (4) of 'racketeering activity' (5) directly or
indirecdy invests in, or maintains an interest in, or participates in (6)
an 'enterprise,' (7) the activities of which affect interstate or foreign
commerce."' Absent exceptions for a victimized member of a con-
spiracy,' 8
penalties under RICO include prison sentences of up to 20
years and a fine of up to twice the gross profits of the offense.' 85 Other
penalties include criminal forfeiture of properties gained from illegal
activity.' The civil penalties under RICO allow for any person who
has been injured in his business or property by a RICO violation to
recover treble damages, plus costs for the suit including reasonable
attorney's fees. ls7 These penalties erode organized crime's financial
base while simultaneously providing economic incentives for private
plaintiffs.'
"In most nations, including Russia, the core activity of organized
crime is 'racketeering,' or the provision of illegal goods and
services. " 9 The nature and organization of an organized prostitution
ring, particularly one that includes trafficked women, fits the statutory
182. The issue of who can be sued or prosecuted has received considerable attention. See
Reves v. Ernst & Young, 507 U.S. 170, 185 (1992) (holding that one must partici-
pate in the operation or management of the enterprise itself).
183. Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983) (citing 18 U.S.C.
§ 1962(a)-(c) (1994)).
184. One particular criminal RICO exception is given to certain groups of persons
thought to be in need of special protection. Accomplice liability will not be imposed
upon such individuals absent a specific legislative policy to treat them as aiding and
abetting the original crime. Gebardi v. United States, 287 U.S. 112, 123 (1932). The
Supreme Court followed this approach in Gebardi where although a woman con-
sented to her transport across state lines for the purposes of prostitution, the Court
did not find her activity as giving rise to accomplice liability. See 287 U.S. at 123.
Although many international legal instruments recognize the human rights abuses
that go along with forced prostitution, see Toepfer & Wells, supra note 6, at 93, this
precedent demonstrates the U.S. Supreme Court's willingness to see the woman as a
victim.
185. See 18 U.S.C. § 1963(a) (1994).
186. See 18 U.S.C. § 1963(a)-(b) (1994); see also United States v. Grande, 620 F.2d
1026, 1039 (4th Cir. 1980), cert. denied sub nom. Castagna v. United States, 449
U.S. 830 (1980) (finding forfeiture provisions constitutional).
187. See 18 U.S.C. § 1964(c) (1994).
188. See Cao, supra note 51, at 1308.
189. Cormanchey, supra note 18, at 272 (citing ROBERT P. RHODES, ORGANIZED CRIME:
CRIME CONTROL Vs. CIVIL LIBERTIES 16 (1984)); see also Ella Cherepakhova, Liliya
Babayeva: Racketeering-"SofV' "Hard," "Omnipresent," Delovoy Mir, reprinted in
F.B.I.S., SOV 95-118, at 31 (June 20, 1995) (interview with Russian sociologist Li-
liya Babayeva).
MICHIGAN JOURNAL OF GENDER 6- LAW (Vol. 6:221
requirements needed to invoke criminal or civil RICO.'" Since injury

to business or property should encompass the sort of injury incurred
by prostitutes,' 9 the injury requirement needed for civil RICO
standing should be satisfied, thereby giving prostitutes a private right
of action against the prostitution enterprise. 192
To have a cause of action under RICO, a prosecutor/plaintiff
must prove injury from the operation of an enterprise affecting inter-
state or foreign commerce which was conducted through acts
constituting a "pattern of racketeering." 93 A pattern of racketeering is
present when a defendant has committed two violations of any of the
94
numerous acts listed in the RICO statute within the last decade.
These acts are referred to as "predicate acts," and include both state
and federal offenses.' 95 Relevant predicate acts include: (1) abduc-
tion; 9 6 (2) acts of mail or wire fraud; 97 (3) the violation that occurs,
under the Mann Act, when a person "transports in interstate or for-
eign commerce ... any woman or girl for the purpose of
prostitution;"' (4) extortion, 99 as these women, at some point, are
forced into this activity under threat of violence to themselves or their
family; and (5) usury laws or unlawful debt.2" Citing any two of these
would most likely satisfy the two predicate acts necessary to invoke
RICO.
The prosecutor/plaintiff must also demonstrate that an enterprise
existed:
[E]nterprise can be an 'individual', 'a legal entity,' or a

'group of individuals associated in fact.' This definition is
190. Although Cao's article, supra note 51, addresses only civil RICO, her argument can
be extended to criminal RICO as well.
191. See infra note 203 and accompanying text for a description of potential injuries.
192. See Cao, supra note 51, at 1313-16.
193. Cao, supranote 51, at 1308 (citing 18 U.S.C. § 1962 (1982)).
194. See Cao, supra note 51, at 1309 (citing 18 U.S.C. § 1962 (1), (5) (1982)).
195. See U.S. DEP'T OF JUSTICE, RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS
(RICO): A MANUAL FOR FEDERA PRosEcuTroRs 5-23 (1988) [hereinafter RICO
MANuAL] (listing examples of predicate acts).
196. See RICO MANUAL, supra note 195, at 7.
197. See RICO MANuAL, supra note 195, at 54-55 n.105.
198. Cao, supra note 51, at 1312 n.68 (quoting 18 U.S.C. § 2421 (1982)) (noting that "a
civil RICO plaintiff has an enormous advantage over public prosecutors" as she only
needs to "prove those acts... by a preponderance of evidence.").
199. See United States v. Delker, 757 F.2d 1390, 1391-92 (3d Cir. 1985); United States
v. Brooldier, 685 F.2d 1208, 1213 (9th Cir. 1982).
200. See United States v. Biasucci, 786 F.2d 504, 506-07 (2d Cir. 1986).
19991 TRAFFIC JAM
interpreted to mean an 'ongoing' and 'continuing unit' of

Cpersons associated together for a common purpose of en-
gaging in a course of conduct.' It must have a 'financial
purpose' and must be more than a loose group created only
to commit the racketeering activity. In other words, the en-
terprise must be 'a separate and discrete element of a RICO
20 1
violation.'
For purposes of the trafficking of Russian women to the United

States, there is a large net that could be cast over the characters in-
volved. The individuals involved in this enterprise include, but are not
limited to, the recruiters, the individuals providing the falsified
documents, the kingpins providing the security and protection, the
brothel owners in Russia and the United States, and the ringleaders in
the United States. 2
Finally, the prosecutor/plaintiff will need to demonstrate an in-
jury. As cited by the Global Survival Network's preliminary report,
there are countless injuries that occur during the course of these debt
bondage schemes, including: (1) women paying traffickers exorbitant
fees to "facilitate" their journey; (2) forced work as prostitutes, usually
without remuneration; (3) illegal confinement; (4) physical and psy-
chological violence, including rape; (5) threats of reprisals against
family members or relatives; (6) inability to choose clients, or to use
safe-sex methods to prevent the spread of sexually transmitted dis-
eases; (7) lack of access to medical treatment and social assistance; (8)
forced illegal migration, often through the use of false documents; (9)
confiscation of passports by pimps; and (10) discrimination, prosecu-
tion, illegal detention, and deportation.20 3 By documenting any of
these harms in conjunction with the elements already established, the
prosecutor/plaintiff could build a case to bring to court.
201. Cao, supra note 51, at 1309 (citations omitted).

202. In a parallel example, Elizabeth Glazer, an assistant U.S. attorney in Manhattan, has
worked with local police to prosecute gang members under RICO. See Francis A.
McMorris, U.S. Prosecutoris using RICO on Gangs,WALL ST.J., March 28, 1997, at
B 11.This unique application of the law demonstrates its ability to group together a
greater number of criminals. Glazer explains, "juries no longer have tunnel vision.
They have a panoramic view of gang members' roles in crimes ranging from murder
to smuggling illegal aliens." McMorris, supra at B1l. Although some mafia organiza-
tions, namely the Russians', may not be familial as is the typical organized crime
syndicate, prosecutors may very well be able to reach them as gang members, thereby
reaching their supervisors.
203. See generally GSN, supra note 3.
MICHIGAN JOURNAL OF GENDER 6 LAW [Vol. 6:221
As indicated, the United Nations has not codified the interna-

tional laws of an ICC, but if and when they do, the incorporation of
RICO into this body of law would be a very effective prosecutorial
tool in the fight against trafficking. Currently, however, RICO is only
a law in the United States, so it could only be applied if the United
States could gain jurisdiction over these traffickers. In order to achieve
this, the suspected individuals must be placed into custody, which
would mean that the offense committed by the individual must be
extraditable. Unfortunately, the United States and Russia do not cur-
rently have an extradition treaty. 204
However, one means by which custody of a defendant may be
obtained outright is by prescriptive jurisdiction. International law
typically allows prescriptive jurisdiction only when it is derived from
international custom or convention, 20 5 but certain exceptions to this
rule do exist.206 The customary international practice exception was
invoked in Noriega when a federal grand jury indicted Noriega for
204. However, recommendation ten of the G7-P8-Senior Experts Group on Transnational

Organized Crime, ofwhich Russia is a part, states:
If extradition of nationals is not permitted by the Requested State, and the
extradition of one of its nationals is requested, the Requested State should:
(1) allow for conditional extradition on the condition that it is only for
trial and that its national be promptly returned after trial to its terri-
tory for service of any sentence within the limits of the law of the
Requested State, or
(2) allow for the transfer/surrender, when it is permitted by domestic law,
only for trial and on the condition that its national be promptly re-
turned after trial to its territory for service of any sentence within the
limits of the law of the Requested State, ...
G7-P8-Senior Experts Group on Transnational Organized Crime, G7-P8-Senior
Experts Group Recommendations, Annex 4, Paris, April 12, 1996 reprintedin Ex-
cerpts, TRENDS IN ORGANIZED CRIME, Summer 1997, at 72, 73.
Moreover, the United States and the Russian Federation have a mutual legal
agreement (MLAA). Although the current MLAA does not allow for the extradition
of foreign nationals, it does permit (1) dbtaining testimony, statements, and materi-
als; (2) providing documents, records, and other items; (3) serving documents; (4)
locating and identifying documents; (5) executing searches and seizures; (6) taking
actions related to immobilization and forfeiture of assets, restitution, collection of
fines; and (7) any other assistance not prohibited by the laws of the requested party.
This agreement provides effective assistance in obtaining materials in prosecutions of
individuals that the United States does have standing to perform. See Agreement
Between the Government of the United States of America and the Government of
Russian Federation on Cooperation in Criminal Law Matters, art. 2 § 2 (1997), cited
in Abramovsky, supra note 152, at 206-11.
205. See Vassalo, supra note 29, at 181-82.
206. See Vassalo, supra note 29, at 182.
1999] TRAFFIC JAM
numerous violations of United States drug trafficking laws."0 7 Al-

though none of these criminal violations occurred within the actual
territory of the United States, the Court justified the prescription of
U.S. law because Noriega's offense, drug trafficking, violated custom-
ary international law. 20' Based on the numerous treaties cited
previously regarding the criminality of trafficking women,20 9 the tan-
gential crime and violence associated with trafficking, and the human
rights law rejecting slavery, which occurs every day for a trafficked
woman, it is reasonable to believe that this practice would also fall
under a "universally condemned offense." 210 If in fact it does, then
RICO charges, as well as all other legal action, could be brought un-
der the Noriega precedent.
B. Recommendation #3: CriminalActivity

Through InterstateCommerce
Another body of criminal law that United States officials can

utilize in this fight against the trafficking of women is the Mann Act.
By coordinating joint efforts between the Department of Justice
(DOJ), the Immigration and Naturalization Service (INS), and the
Department of State (DOS), the federal government can more effec-
tively prosecute and/or deport those responsible for trafficking.2

208. See Noriega, 746 F. Supp. at 1512-16.
209. See supra notes 6, 64, 85.
210. Rachel Bart, Using the American Courts to Prosecute International Crimes Against
Women: Jane Doe v. Radovan Karadzic and S. Kadic v. Radovan Karadzic, 3 CAR-
DOZO WOMEN's L. J. 467, 473-76 (1996) (discussing Filartiga v. Penna-Irala, 630
F.2d 876 (2d Cir. 1980) and Tel-Oren v. Libyan Arab Republic, 726 F.2d 774
(D.C. Cir. 1984)). The Second Circuit in Filartigainterpreted the Alien Tort Claims
Act (ATCA) broadly, holding that kidnapping, torture, and murder violated the law
of nations. See Bart, supra. Further decisions allowed ATCA suits for other forms of
cruel, inhuman, or degrading treatment. See Bart, supra. Under these cases, forced
prostitution would likely be classified as a violation of the law of nations. In Tel-
Oren, however, the court narrowed the ATCA, limiting its application to state actors
and to crimes existing when the Judiciary Act was passed in 1789. See Bart, supra.
Congress responded by passing the Torture Victim Protection Act, expanding the
scope of the ATCA to allow liability against non-state actors, but not suits involving
purely private groups. See Bart, supra.
211. See Jonathan M. Winer, Alien Smuggling: Elements of the Problem and the US. Re-
sponse, U.S. Working Group on Organized Crime, National Strategy Information
Center, at 12 (1997). In 1993, President Clinton issued a directive to combat alien
Congress has the power "[t]o regulate Commerce with foreign

Nations, and among the several States," 212 a concept that includes the
intercourse and traffic between United States citizens.213 Congress first
addressed the problem of trafficking by criminalizing the transporta-
tion of humans in the Mann Act. 2" The Mann Act forbids
transporting a person across state lines or international boundaries and
imposes fines and/or imprisonment of up to ten years for "[c]oercion
and enticement." 25 This concept has been further codified in the U.S.
Code,
fi 216 which provides for further penalties of imprisonment and
fines. The application of the Mann Act and subsequent legislation
to the intended consequences of trafficking, namely prostitution, not
only makes the activity illegal, but could establish significant penalties
for those responsible. This would undercut their profit, and therefore
discourage future trafficking to this country.
C. Recommendation #4: CriminalActivity

Through Immigration Law
As trafficked women are the victims of traffickers, it is important

for United States officials not only to prosecute those United States
citizens who run these organizations, but also to utilize the existing
body of immigration law to separate those who procure from those
who are forced into prostitution. In 1996, Congress passed the Illegal
smuggling through law enforcement, the interdiction of vessels, and new procedures
for processing asylum claims and returning migrants.
The directive brought together the Department of Justice, the Immigration and
Naturalization Service, and the Department of State to study this problem. The
group recommended the following actions: development of programs to increase the
awareness of trafficking among foreign govbrments, adoption of new laws, prosecu-
tion of officials implicated in trafficking, expansion of U.S. enforcement mechanisms
overseas, and increased training and information distribution among border guards,
inspection officers, and law enforcement officials.
212. U.S. CONST. art. I, § 8, d. 3.
213. See generally United States v. Lopez, 514 U.S. 549, 558-59 (1995) (summarizing
categories of activity regulable by Congress under its commerce powers).
214. See White-Slave Traffic (Mann) Act, ch. 395, 36 Star. 825 (1910) (codified as
amended at 18 U.S.C.A. §§ 2421-2424 (West Supp. 1998)).
215. 18 U.S.C.A. § 2422 (West Supp. 1998). "Coercion and enticement" has proven to
cover actions induding kidnapping, physical and mental force, threat, torture,
blackmail, extortion, promise of financial rewards or marriage, and isolation from
others. See Wijers and Chew, supranote 50, at 11 n.39.
216. See 8 U.S.C. sec. 1328 (1990).
1999] TRAFFIC JAM
Immigration Reform and Immigrant Responsibility Act.217 This body

of law contains extensive language applicable to the problem of traf-
ficking, and offers deportation and bars on readmission as viable
penalties. The Act's guidelines state that those aliens who have en-
gaged in or procured persons for the purpose of prostitution prior to
21
coming to the United States shall be excluded from admission. Al-
though this law refers to both the traffickers and the prostitutes, the
fight against trafficking may be better served if only the traffickers be-
came the focus of these government actions.
There are two other portions of the 1996 Act that may be effec-
tively utilized to penalize traffickers. One of the most useful and
creative legislative tools in deporting targeted individuals is the visa
overstay, which accounts for over half of illegal immigration in the
United States. 21 9 The penalties for visa overstays have been increased
so that an overstay of six months to a year will bar readmission for
three years; and any stay over one year will bar readmission for ten
years. 2 °0 Most recently, in the 1996 Act, individuals convicted of
document fraud or mutilating passports can receive strict sentences,
including deportation and prison time." These are both highly effec-
tive means of preventing trafficking because the processing of
immigration paperwork is the easiest way for law enforcement officials
to cite cause for deportation in the event of a visa overstay, and it is a
means by which to deny entry if credentials are not in fact legitimate.
By using immigration laws to identify domestic activity, United
States officials may be better able not only to prosecute individuals for
the crime of trafficking, but also to deport them. Although this multi-
tiered approach of existing law and new legislation will provide a
217. Pub. L. No. 104-208, 110 Stat. 3009-546 (codified as amended 8 U.S.C. §§ 1544-
1546 (1996)).
218. See 8 U.S.CA § 1182(a)(2)(D) (West Supp. 1998); but see 8 U.S.CA § 1182(h)
(West Supp. 1998) (regarding exceptions from exclusion under previous provision).
219. See MICHAEL FIX ET AL., IMMIGRATION AND IMMIGRANTS: SETTING THE RECORD
STaItxGHT 25 (1994); see also Maria Isabel Medina, The Criminalizationof Immigra-
tion Law: Employer SanctionsandMarriageFraud,5 GEO. MASON L. REv. 669, 688-
89, n.89 (1997). A visa overstay refers to those nonimmigrants who remain past the
authorized period of their visa.
220. See 8 U.S.C. §§ 1544-1546 (1996).
221. See 8 U.S.C. § 1544, 1546(a) (1996). Under current law, alien smuggling can result
in ten years to life imprisonment; abetting trafficking operations is punishable by five
years imprisonment; illegal entry (with repeated offenses) can bring four to twenty
years of imprisonment; the use of fraudulent documents carries a penalty of ten to
fifteen years imprisonment; and employers and carriers may be punished by brief im-
prisonment or fines. 8 U.S.C. §§ 1544, 1546(a).
MICHIGAN JOURNAL OF GENDER & LAW [VCol. 6:221
means to deport or imprison convicted traffickers on United States

soil, the larger problem of human rights abuses abroad may call for a
more diverse approach.
D. Recommendation #5: Organized CrimeActivity As A Violation of the

Foreign CorruptPracticesAct
The Foreign Corrupt Practices Act (FCPA) is a criminal statute

that prohibits American citizens from bribing foreign officials to assist
them in obtaining business, and that provides fines of up to $100,000
for an individual and $2,000,000 for a corporation. m The types of
payments that this statute attempts to quell occur all too frequently in
Russia, where corruption is rampant due to the influence of organized
crime.
Although the FCPA is unique to the United States and the con-
duct it prohibits would probably not by "universally condemned"
under Noriega, we must examine how its application in the U.S. may
affect these business practices abroad. As has been discussed, debt
bondage is part of a larger scheme of organized criminal activity. It
begins in Russia and eventually becomes profitable in other countries,
including the United States. Trafficked women are often brought to
the United States on false documents obtained from corrupt govern-
ment officials. 4 Some traffickers are members of the mafia, while
some are just individuals bribed by this international mafia organiza-
tion-a strong contingent of which is located in the U.S.22 5
The fact that traffickers are able to produce these documents ar-
guably corrupts the United States economy because this particular
activity, as alluded to in Perez v. United States,26 affects a larger pool
of funds established by both legitimate and illegitimate business of
this criminal syndicate. The FCPA applies only to U.S. businessmen,
but if the traffickers are visa or green card-carrying immi-
grants/businessmen, it must also apply to them. Even if they are not
222. See 15 U.S.C. § 78dd (1994); H.R Rep. No. 576, 100th Cong., 2d Sess. 920
(1988).
223. See supra notes 32-39 and accompanying text.
224. See generally GSN, supra note 3; see also DiPaola, supra note 31, at 178. DiPaola
states that these criminals maintain the ties with government through lobbying, run-
ning for office themselves, controlling the press, and through violent action. See
DiPaola, supra note 31, at 178.
225. See GSN, supranote 3, at 37-39.
226. 402 U.S. 146, 156 (1971).
1999] TRAFFIC JAM
directly controlling the bribes, their agents overseas are establishing a

corrupt fund that feeds monies into a larger pool of assets, a percent-
age of which is used for global bribery. 7 Additionally, and because a
1988 Amendment to the FCPA holds U.S. businesses liable for the
payments either made or likely to be made by third persons,' these
Russian emigres may be held responsible for the actions of the crimi-
nals still in Russia. Therefore, the FCPA may allow for yet another
prosecutorial tool to be used in the fight against trafficking.
Although there is no explicit language identifying a private rem-
edy under the FCPA, such a remedy may nonetheless be available. In
Cort v. Ash, the Supreme Court discussed the factors relevant to de-
termining whether a statute includes a private remedy:
First, is the plaintiff one of the class for whose especial bene-
fit the statute was enacted ... ? Second, is there any
indication of legislative intent explicit or implicit, either to
create such a remedy or to deny one? ... Third, is it consis-
tent with the underlying purpose of the legislative scheme to
imply such a remedy for the plaintiff? ... And finally, is the
cause of action one traditionally relegated to state law, in an
area basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on fed-
eral law?229
These four factors might suggest that the FCPA provides a pri-
vate cause of action for trafficked women.2'0 As to the first point, these
227. See Ninel F. Kuznetsova, Crime in Russia: Causes and Prevention, 2 DEMOKRATISAT-
SiYA 442, 444-45 (1994); see also Izvestia's Analytic Center, The Unknown War
Against Corruption, reprinted in Cuaaarr DIG. OF THE Posr-SovIET PRESS, Vol.
XLVI, No. 46 at 15 (1994).
228. See FCPA § 78dd, supranote 222.
229. Cort,422 U.S. 66, 78 (1975) (citations omitted)(emphasis in original).
230. But see McLean v. International Harvester Co., 817 F.2d 1214, 1219 (5th Cir. 1987)
(same holding); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1027-30 (6th Cir.
1990) (same holding), cert. denied, 498 U.S. 1086 (1991); Citicorp Int'l Trading Co.
v. Western Oil & Refining Co., 771 F. Supp. 600, 606-07 (S.D.N.Y. 1991)
(holding that the FCPA does not provide a private right of action under Cods four-
factor analysis). Cf Scott P. Boylan, Organized Crime and Corruptionin Russia: Im-
plicationsForU.S. andInternationalLaw, 19 FoaDHnA INT'L L.J. 1999, 2026 n.162
(1996) (arguing that the FCPA should apply to foreigners and extraterritorially under
Dooley v. United Technologies Corp., 803 F. Supp. 428 (D.D.C. 1992)); Daniel Pines,
Amending the Foreign CorruptPractices Act to Include a PrivateRight of Action, 82
women can claim that the FCPA was established to protect United
States interests abroad, and by allowing the mafia to use its profits
from illegitimate business to control their travel to this country, these
women in effect have standing as an injured party. It is clear that the
business of trafficking is considered criminal, but nonetheless, the
government bribes are in effect facilitating the women's transport; and
although no specific competing business is being injured, the financial
gains that the mafia make on this activity may very well be affecting
any legitimate competition that the mafia may be involved in. Un-
fortunately, we can not be sure of what those businesses are; therefore,
it may be sound public policy to allow these women to obtain stand-
ing as the injured party.
As to the second point, although there does not seem to be any
specific legislative intent, an examination of the genesis of the RICO
laws establishes that organized criminal activity affects businesses and
contracting abroad, and it is therefore the duty of the government to
apply any and all means available to eradicate that corrupt activity. If
there is in fact no legislative history, then we must examine the many
treaties of the United Nations, such as CEDAW, that require state
parties to "take all appropriate measures, including legislation, to sup-
press all forms of traffic in women and exploitation of prostitution of
,,231
women.
As for the third point, the purpose of the FCPA is "to prevent
bribery of foreign officials and to protect businesses from having
competitors gain an advantage by offering such bribes."232 Other busi-
nesses will suffer economic hardship from the existence of this type of
business. Organized crime is implicated in this theory because, as
demonstrated by case law, any income derived from the legitimate
business of organized crime goes into a larger pool of illegitimate ac-
tivity, which undercuts private businesses everywhere. 2 3 Therefore,
this remedy will be an attempt to even the playing field.
The fourth requirement is fulfilled because the courts have estab-
lished that the regulation of bribery directed at foreign officials cannot
be characterized as a matter traditionally relegated to state control and
CAL. L. Rrv. 185, 216 (1994) (arguing that the FCPA should be amended to allow a
private right of action among competing U.S. businesses).
231. CEDAW, supra note 85, at 17. CEDAW has been ratified by numerous countries,
induding Germany and the Russian Federation. CEDAW, supra note 85, at 14. The
United States has signed but has not ratified CEDAW.
232. FCPA, supranote 222.
233. See Perez,402 U.S. at 156.
19991 TRAFFIC JAM
must be established as a federal offense.4 Although it is questionable

whether the courts will allow the FCPA to extend to a private right of
action, if it were successfully used for these trafficked women, it
would provide further deterrence to organized crime.
E. Recommendation #6- Possible Tort Claims of

Trafficked Individuals
1. Claims Under the Alien Tort Claims Act
Since 1789, the Alien Tort Claims Act (ATCA) has granted the
United States federal courts jurisdiction over "any civil action by an
alien for a tort only, committed in violation of the law of nations or a
treaty of the United States."235 In Kadic v. Karadzic, plaintiffs suc-
cessfully brought suit under the ATCA for compensatory and punitive
damages, as well as for injunctive relief.236 Although that case ad-
dressed victims' rights under multiple genocidal torts perpetrated
against women, the complaint included forced prostitution.'
As has been discussed, trafficked women are often victims of
forced prostitution. Accordingly, because this practice has been out-
lawed by several international treaties, these women may be able to
utilize the United States' court system to claim injury under the
ATCA and receive financial damages. In fact, a recent application of
this statute under claims of mass torture and murder brought five
plaintiffs a total of more than $100,000,000 in punitive and compen-
satory damages.28 Although some may question a trafficked woman's
ability to physically endure this type of-litigation, courts have allowed
third parties -to bring class actions on behalf of victims. 9 The success
of this type of suit would not only help fund educational and medical
assistance to victims, but would be devastating to the criminal empire
of the Russian mafia.
234. See Lamb, 915 F.2d at 1030.

235. 28 U.S.C. § 1350 (1994).
236. See Kadic, 70 F.3d 232 (2d Cir. 1995), cert. denied,518 U.S. 1005 (1996).
237. See Kadic v. Karadzic, 70 F.3d at 236-37.
238. See Mushikiwabo v. Barayagwiza, No. 94 Civ. 3627, 1996 WL 164496, at *3
(S.D.N.Y. Apr. 9, 1996).
239. See Yolanda S. Wu, Recent Developments, Genocidal Rape in Bosnia: Redress in
United States Courts Under the Alien Torts Claims Act, 4 UCLA WOMEN's L.J. 101,
106-07 (1993).
2. Intentional Tort Claims Under U.S. Law
It is feasible that trafficked women could sue their pimps and re-
cruiters as tortfeasors under a claim of intentional tort. The scienter
requirement for international torts does not include a desire to harm
the victim. The intentional torts include: battery, assault, false impris-
onment, and intentional infliction of mental distress. 20 Battery is the
intentional infliction of a harmful or offensive bodily contact. 24 As-
sault is the intentional causing of an apprehension of harmful or
offensive contact.242 False imprisonment is the intentional infliction of
confinement.243 Lastly, intentional infliction of emotional distress is
defined as the intentional or reckless infliction of emotional distress
by extreme and outrageous conduct.244 This comment has demon-
strated the numerous types of harm that the pimps and traffickers
have intentionally inflicted upon trafficked women so that they re-
main subservient. These activities include beatings, confinement to
quarters, and threats to their own physical well-being and that of their
families. Because there are several nuances to these torts, and their ap-
plication is very case-specific, this discussion will not address them
individually. Rather, its point is to establish that under these various
constructions of tort law, trafficked women have standing to sue un-
der tort principles in a United States court.
CONCLUSION
The current situation for trafficked women is unacceptable. Rus-

sian mafia, often through police or government officials, have
convinced these women to leave Russia for opportunities that do not
exist. Subsequently, women are forced to prostitute themselves in a
foreign land where their security rests with the same organization that
threatened them to begin with. This organization-the Russian ma-
fia-is a strong, organized criminal syndicate that is only now taking
advantage of its transnational opportunities. Although the Russian
mafia may be a relatively new face on the criminal scene, the problem
of trafficking is anything but.
240. These torts may be considered under a criminal cause of action as well.
241. See RESTATEMENT (SECOND) OF TORTS % 13, 18 (1965).
242. See RESTATEMENT (SECOND) OF TORTS § 21 (1965).
243. See RESTATEmENT (SECOND) OF TORTS § 36(3) (1965).
244. See RESTATEMENT (SECOND) OF TORTS § 46(1) (1965).
1999] TRAFFIC JAM 259
Regulatory and international criminal prohibition of trafficking

of women has occurred over the better part of this century. Ulti-
mately, all of the legislation in the world cannot be effective if there is
no enforcement. Although the United Nations has attempted to
regulate nations' enforcement habits, it has met with little success.
Most recently, there has been discussion of the creation of an interna-
tional criminal court to prosecute the individuals involved in this
behavior. The court may in fact become a reality, but the many issues
that are involved will no doubt delay its enactment. In that case, it is
the responsibility of practitioners and academics alike to hypothesize
ways through which to curb this problem. Although the trafficking of
women transcends commerce and business and is ultimately an issue
of human rights, the suggested application of U.S. law outlined in this
article may force some crime syndicates to weigh the cost of the risk
against the ruble. t

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Michigan Journal of Gender & Law

Traffic Jam: Recommendations for Civil Penalties to Curb the

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J.D. Candidate, Columbus School of Law at the Catholic University of America,

1. Claims Under the Alien Tort Claims Act 257

"If those who traffic in drugs should be punished severely-and

Recent investigations into Russian organized crime syndicates

sistance to them.7 Enforcement procedures, however, have been in-

7. See Toepfer & Wells, supranote 6, at 90.

half century.! When United States Senator Estes Kefauver's committee

9. See G. Robert Blakey, FederalCriminalLaw: The Need, Notfor Revised Constitutional

B. The Russian Mafia

1. The History of Russian Organized Crime

Russian mafia to its highest investigative priority.2 4 This places them

2. Role of the Russian Mafia in Government Corruption

With the advent of perestroika, the line distinguishing the gov-

government officials who continued the tradition of corruption left

C. Involvement ofthe Russian Mafia in ForcedProstitution

One business that is growing particularly fast is forced prostitu-

33. See DiPaola, supranote 31, at 149.

41. See Demleimer, supranote 37, at 187.

of those of a person under his control as security for a debt, if the

II. CURRENT LAW

Although the practice of forced prostitution is still prevalent in

bound its thirteen signatories to severely punish any person

The Convention referred to "anti-trafficking," as opposed to "anti-

trafficked immigrants and emigrants.6 This approach confused inter-

In 1946, the United Nations Economic and Social Council cre-

74. See Toepfer & Wells, supra note 6, at 94.

tory acts and (2) intentional participation. Although no specific pen-

1957 Abolition of Forced Labour Convention." Forced labor is de-

mission's right to receive inter-state complaints depends wholly upon

Efforts by the United States to prosecute criminals located abroad

97. See Toepfer & Wells, supra note 6, at 124-25.

whom it seeks to prosecute for an alleged wrongdoing. 05 The Supreme

the principles of international law recognize no right to ex-

Extradition provides for the transfer of an accused person from

tween countries may lead to the denial of extradition and, therefore,

a. Mutual Legal Assistance

by allowing foreign intrusion into what are typically domestic con-

114. See Vassalo, supranote 27, at 188.

b. Prescriptive Jurisdiction Rule

Customary international law holds that a state may not maintain

diction exception, jurisdiction 32 is permitted if it is done with the con-

2. The International Criminal Court

Due to an inability to enforce international criminal standards,

3. International Justice Commission

Opponents of the ICC identify five obstacles: (1) lack of a stan-

148. See generally Sandra L. Jamison, A PermanentInternationalCiminalCourt:A Proposal

151. See Farah Hussain, Not6, A FunctionalResponse to International Crime: An Interna-

The natural tendency in law enforcement is to punish those in-

158. See Farrior, supra note 110, at 213-14.

III. LEGAL RECOMMENDATIONS UNDER EXISTING U.S. LAW

Currently, most of the receiving countries, even if they are party

166. See Galey, supra note 165, at 464-66.

rights abuses.' 74 This general practice makes it impossible for women

A. Recommendations #1 and#2: Criminal& CivilRICO Application

In 1970, Congress enacted the Organized Crime Control Act,

174. See GSN, supra note 3, at 49.

requirements needed to invoke criminal or civil RICO.'" Since injury

[E]nterprise can be an 'individual', 'a legal entity,' or a

interpreted to mean an 'ongoing' and 'continuing unit' of